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- A18041

- 23 2023 PA Super 233

COMMONWEALTH OF PENNSYLVANIA

v. FLECIA HARVEY

Appellant : : : : : : : IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 452 WDA 2022 Appeal from the Judgment of Sentence Entered October 26, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at

No(s): CP

- 02

- CR

- 0001843

- 2021

BEFORE: BENDER, P.J.E., LAZARUS, J., and KUNSELMAN, J. OPINION BY KUNSELMAN, J.: FILED: November 8, 2023 In this case of first impression, Fl e cia Harvey appeals from a judgment of sentence , impos ing one year probation, after the trial court convic ted her of destroying a survey monument and trespass. 1 T here is no evidence proving whether t he stakes and flags she removed from a driveway met the statutory definition of “ survey monuments or markers

. ” Thus, we reverse the denial of post

- sentence relief and remand for resentencing on the trespass charge

. Ms. Harvey and her wife , V eronica Rutherford, owned a residence on a lan dlocked property in Penn Hills. Their land adjoined that of Holly and Ramin Fash andi , another landlocked property . Mr. Fashandi’s p arents (“Parents”)

ow n ed the land separat ing the landlocked properties from the public road

. The landlocked propert ies also had abutting, twelve

- and

- half

- foot

- wide
easement s through the Parents’ property. Th os e easements allowed Ms.

_________________ __________ ______ ____ _______ 1 See 18 Pa.C.S.A. §§ 3312(a)(2) and 3503(b.1)(1)(i)

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Harvey, Ms. Rutherford, and the Fashandis to access their properties by using equal hal ves of a common , asphalt driveway

. Mr. Fashandi hoped to improve the driveway by upgrading the surface
to concrete. He and his wife approached Ms. Harvey and Ms. Rutherford to ask if they wanted to enter into a joint

- maintenance agreement. When Ms. Rutherford declined, the Fashandis decided t o proceed with improving their half of the driveway. Mr. Fashandi hired a surveyor to mark his half of the easement , so the Fashandis “ could begin to tear [the asphalt ] out, repair it, and re place it with concrete.” N.T., 10/21/21, at 10. They had R.F. Mittal Associates, Inc. (the “Mittal company”) mark the easement, because th e Mittal company had surveyed the property for the Fashandis in 2018

. O n April 25, 2020, the Mittal
company “ put pins and flags in the driveway, and then he pulled off of tho se [twelve

- and

- a - half f ee t ] and set stakes and flags going up the grass.” N.T., 10/21/21, at 13. This marked the easement for the concrete project by dividing the driveway in half

. Later than day , Ms. Harvey returned home and took exception to having the markers in the middle of the driveway. She ripped up “the markers that the surveyor put in the ground.” Id. at 14. She also entered the Parents’ property and threw the removed wooden st a kes and flags into their yard

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Fashandi s called the police . T hey charged M s. Harvey with destruction of a survey monument and scattering rubbish on the land. 2 The matter proceeded to a non

- jury trial , where t he Commonwealth moved to add a count for simple trespass to the criminal complaint . T h e trial court granted that motion

. Next, Mr. and Mrs. Fashandi testified for the Commonwealth during its case

- in

- chief. Jeffery Horneman, a n expert in land surveying, testified during Ms. Harvey ’s defense

. She did not testify. T he trial
court acquitted Ms. Harvey of scattering rubbish on the land , but it convicted her of destruction of a survey monument and simple trespass

. The court sentenced Ms. Harvey as described above. S he filed a post

sentence motion seeking judgment of acquittal

. Aft er 120 days passed , the clerk of court s entered an order denying the motion “ by operation of law pursuant to Pa.R.Crim.P. 720(B)(3)(b) .” T rial C ourt O rder , 3/31/22, at 1. This timely appeal followed.
Ms. Harvey raises three issues , which we have reordere d for ease of disposition as follows : 1

. W as the evidence insufficient to sustain the conviction [for] destruction of a survey monument , because the Commonwealth did not establish, beyond a reasonable doubt, that Ms. Harvey damaged or removed “any survey monument or marker” pursuant to 18 PA.C.S.A. § 3312? 2

. Was the evidence insufficient to sustain the conviction [for] destruction of a survey monument , because the C ommonwealth did not establish, beyond a reasonable

_________________ __________ ______ ____ _______ 2 See 18 Pa.C.S.A. § 6501(a)(1).J

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- doubt, that Ms. Harvey had the intent of calling into question a boundary line, as opposed to just annoying her neighbors? 3

. Was the evidence insufficient to sustain the conviction [for] criminal trespass/simple/simple trespasser , because the C ommonwealth did not establish, beyond a reasonable doubt, that Ms. Harvey’s purpose in entering the property was to threaten or terrorize the owner or occupant of the premises? Harvey’s Brief at 5. We address only the first issue, because it is dispositive.
Ms. Harvey claims the Commonwealth’s evidence was insufficient to convict her of destruction of a survey monument. S he claims the evidence does not support the fin ding that she removed a “ survey monument or marker. ” Ms. Harvey believes she re moved temporary wooden stakes and flags, as opposed to permanent objects , such as the below

- ground metal pins
or concrete monuments , which surveyors use to mark property bounda ries

. In her view, the wooden stakes and flags were only temporary guides for the installation of the concrete

. Id. at 12. In response, the Commonwealth relie s on the opinion of the trial court , wherein th e trial court stated:
all of the

. . . pins, flags, and stakes were to outline the ease m ent , and there was no evidence that they were temporary . . . [Ms. Harvey’s expert witness,] Mr. Horneman’s testimony establishes that the wooden stakes are not “temporary markers” but are used as “witness markers” to aid in the location of the metal markers that are pounded in the ground and may only be found by a metal detector. Commonwealth’s Brief at 9 (quoting Trial Court Opinion, 6/29/22 , at 6). The Commonwealth additionally relies upon Mr. Horneman ’s admission on cross -J

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examination that he did not know “whether the s takes and flags that were removed by [Ms. Harvey] were temporary markers . . . .” Id. (citing N.T., 10/21/21, at 39).

“ Because a determination of evidentiary sufficiency presents a quest ion of law, our standard of review is de novo , and our scope of review is plenary. ” Commonwealth v. Williams , 176 A.3d 298, 305 (Pa. Super. 2017) (citations and quotation marks omitted). Furthermore , “ we must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, were sufficient to prove every element of the offense beyond a reasonable doubt. ” Id. In order to determine whether the Commonwealth provided sufficient evidence of record to prove Ms. Harvey committed destruction of a survey monument, we turn to the statute. The General Assembly has dictated that a

“ person commits a misdemeanor of the second degree if [that person] wi llfully or maliciously cuts, injures, damages, destroys, defaces , or removes any survey monument or marker . . . .” 18 Pa.C.S.A. § 3312 (a)(2)

. Critically, the legislature defined “survey monument or marker” as follows: Any object adopted or placed by a p rofessional land surveyor to define the boundaries of a property, including, but not limited to, natural objects such as trees or streams, or artificial monuments such as iron pins, concrete monuments, set stones or party walls. The phrase does not includ e a wooden stake placed by a professional land surveyor as a temporary marker or placeholder.
18 Pa.C.S.A. § 3312 (d) (emphasis added)

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The plain language of that definition carves out an exception for “wooden stake , ” like the wooden stakes that Ms. Harve y removed from the

common driveway. This exception applies if a land surveyor placed the wooden stakes to serve as a “temporary marker or placeholder.” The Commonwealth offered no evidence as to the land surveyor’s intent regarding the wooden stakes and flags that the Mittal company inserted on April 25, 2020. While the trial court correctly observed that “there was no evidence that they were temporary,” there was also no evidence that the woode n stakes and flags were permanent . Trial Court Opinion, 6/29/22, at 6. The Commonwealth neglected to call anyone from the Mittal company to explain whether the y installed the wooden posts and flags with the intention that they be permanent or temporary. Nor did Mr. and Mrs. Fashandi offer any testimony as to th e Mittal company’s intent at the time the markers were installed

. In fact, the Fashandis testified that the wooden stakes and flag s were installed for the purposes of resurfacing the driveway, no t as the permanent markers of the property line. T he only reasonable inference a f inder of fact could draw from th at testimony wa s that the wooden stakes and flags were temporary

– i.e. , that the Fashandis planned to remove the m following the driveway

- imp rovement project

. Hence , the record is devoid of any evidence to prove whether the removed stakes and flags were permanent (and therefore fell within the definition of “ survey monument or marker ” ) or were temporary (and thereforeJ

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fell within the exception to that definition )

. See 18 Pa.C.S.A. § 3312(d)

. The trial court’s finding of fact that the Mittal company intended the stakes and flags as permanent fixtures that fell within the statutory definiti on was mere speculation. To support the trial court’s unsubstantiated finding , t he Commonwealth make s much of Mr. Horneman’s admission on cross - examination that he did not know whether the Mittal company intended the wooden stakes and flags to be permanent or temporary. H owever, h is inability to read a third

- party’s mind was irrelevant , as a matter of constitutional law

. I t was not Ms. Harvey’s obligation to disprove her guilt by forcing her expert to divine the mindset of the Mittal company on the morning of April 25,
2020

. Fundamentally, she did not have the obligation to disprove any element of the offenses charged , because i t is settled law in this country that “ t he prosecution must convince the trier [of fact] of all the essentia l elements of guilt. ” In re Winship , 397 U.S. 358, 361, (1970) (emphasis added)

. By

r elying on the failure of Ms. Harvey’s expert witness to disprove an element of the offense charged , the Commonwealth would have this Court violate Ms. Harvey’s Due Process Rights under the Fourteenth Amendment to the Constitution of the United States. See id

. This we may not do

. In sum, i t was the Commonwealth’s burden to prove that the survey markers w ere intended to be permanent and thereby bring them with in the definition of “ survey monument or marker” under 18 Pa.C.S.A

. § 3312(d). The Commonwealth did not meet that burden during its case

- in

- chief. Hence ,J

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a s a matter of law, t he conviction for destruction of a survey monument may not stand. Ms. Harvey’s first appellate issue warrants relief

. 3 Judgment of sentence vacated

. Order denying post

- sentence motion reversed ; judgment of acquittal granted on charge of destruction of a survey
monument

. C ase remanded for resentencin g on charge of simple trespass

. 4 Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/08/2023

_________________ __________ ______ ____ _______ 3 We dismiss her two remaining appellate issues as moot.

4 We note that the parties and trial court agree that the sentencing court made a clerical error when drafting its order and the docket regarding th e statutory subsection for the simple

- trespass charge. This clerical error was t he sole basis of Ms. Harvey’s third appellate issue and argument. On remand, the court may correct its clerical error at re sentenc ing

. Thus, we need not address the third issue further.